Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538

Runge v. Prairie States Ins. of Sioux Falls

393 N.W.2d 538

S.D.

1986

Check Treatment

*1 M. and Donna M. Richard RUNGE

Runge, Special Administrators of as Raymond Runge,

Estate of Richard de-

ceased, Appellees, Plaintiffs and

PRAIRIE STATES INSURANCE OF FALLS, Dakota, South

SIOUX Appellant.

Defendant and

Nos. 14949.

Supreme of South Court Dakota.

Argued Jan. 1986. Sept.

Decided 1986.

mаke lights sure the were working, and proceeded to walk back to his home in Fort Pierre where he going get was a pickup truck pull the stalled truck off the bridge. a.m.,

At Richard, about 9:45 a sixteen- year-old resident Pierre, of Fort South Da- kota, heading was east bridge across the into Pierre on his motorcyclе. Richard struck the rear of the stalled truck and was people killed. Two riding following a car him testified he weaving, much like a racer, slalom ski painted between the white markings lane shortly before the crash. Gors, Gors, Carlon, Max A. Braun & Some of the testimony adduced at trial Pierre, Gary Davis, Johnson, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍E. in sharp conflict. testified Davis, Eklund Gregory, plaintiffs & that when he returned to the accident appellees. scene, he had gone been from the truck for Eugene Riter, Mayer D. Mayer, Hofer about one witness, however, hour. One Riter, Pierre, & appel- for defendant and testified that she had seen the truck stalled lаnt. on bridge at approximately 7:50 that morning, which would mean the truck had MORGAN, Justice. been bridge stalled on the for about two Appellant (Prai- Prairie States Insurance prior hours to the accident. Additionally, States) rie appeals from a verdict en- conflicting there was testimony regarding tered in favor оf Richard M. and Donna M. whether or not the lights truck’s hazard Runge (Runges), special as flashing. administrators were LaFurge and two other wit- (Rich- of the estate Runge of Richard R. nesses lights testified the flashing; were ard), wrongful in a others, death Runges including action. persons the two who wit- brought suit to recover from accident, Prairie Stаtes nessed the testified were under their policy, uninsured motorist since not. several expressed witnesses the owner of the vehicle Richard collided confusion regarding ability their to ascer- with carried no insurance. Prairie States tain whether stopped. the truck was These appeals verdict, denial a witnesses testified slight that due to the verdict, directed and the denial of a motion bridge approaching incline on the notwithstanding Runges, truck, verdict. positioning and the of the truck in review, notice of challenge light poles the refusal of bridge guard relation to and the the trial court to prejudgment railing, award inter- appeared it if as the truck was est. We affirm the trial actually court on all issues. moving with the traffic flow. Only upon nearing the truck could these Ken (LaFurge) driving witnesses tell it was stalled. The sanitation easterly truck from Fort Pierre people who witnessed the how- Pierre, Dakota, into 7, South August ever, could tell the truck was 1981. As crossing he was the Missouri why wondered Richard did not move out Bridge dividing River towns, the two open pass. into the left-hand lane to quit. get started, truck Unable to it La- Furge attempted to roll the truck Initially, back Prairie States claims that Rich- slight bridge down the incline. The truck ard’s was more than wedged against became comparison LaFurge’s, curb of the with and as such right-hand lane bridge. LaFurge Runges were not entitled to recover. its testified verdict, that he turned on his hazard found Richard was lights, got truck, out of negligent, checked but that his LaFurge’s negli- with by his stalled vehicle. See Winburn v.

gence. policy, Vorst, 531, Under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the terms of the Vаnder S.D.

Runges may (1952), rehearing, 531, recover on the uninsured mo- aff’d on 74 S.D. provision only they legally (1953); if are enti- Klock, torist N.W.2d 819 Descombaz v. damages (1931), tled to recover 58 S.D. 235 N.W. 502 aff’d on rehearing, 240 N.W. 495 argue Prairie States does not that La- (1932); Miller, Bruening v. *3 Furge negligent. was not It concedes that (1930). N.W. 754 See also State Farm enough presented evidenсe was to create a Mut. Auto. Ins. v.Co. South Cent. Bell jury concerning LaFurge’s negli- issue Co., Tel. (La.App.1978). So.2d 1318 It gence. It is Prairie States’ claim that Rich- against negligent this conduct that we guilty ard was of more than contrib- compare must now the conduct of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Richard. utory negligence law; as a matter of failing that thе in trial court erred to direct Runges argue that in no instance States, a verdict for Prairie or in the alter- plaintiff-driver should a court rule that a native, grant to their motion for contributorily negligent was as a matter of notwithstanding the verdict. failing law in to observe a stalled vehicle. 3See Blashfield Automobile Law & Prac recently This court has examined the (1965). tice 116.62 While we do not § applied standards comparative under the agree plaintiff-driver that a would never be negligence statute. See Lovell v. Oahe contributorily negligent as a matter of law Co-op., (S.D.1986). Elec. failing vehicle, in to observe a stаlled we do plaintiff, When facts show that the be agree with the trial court and hold that the yond dispute, reasonable was actions of Richard did not amount to con negligence slight, it is the tributory negligence as a matter of law. hold, function of the trial court to jury testimony The heard that could have law, mattеr of the defendant. allowed reasonable minds to conclude that 424, Stofferahn, Starnes v. 432- Richard’s compari in (1968). 160 N.W.2d The son to that of Several witnesses is made with the testified they difficulty telling that had defendant, rather than with the whether or not the truck was in ordinarily prudent person. Crabb v. apparent optical mоtion due to the illusion Wade, 93, 97-98, 167 N.W.2d incline, bridge railing, created (1969). light poles. Furthermore, testimony Lovell, 382 N.W.2d at 399. Marsh, Mr. one of the witnesses to the There is no that doubt evidence was ad- indicated that Richard his duced at whereby jury trial could find approximately slalom maneuver one hun LaFurge guilty negligence. Initially, yards impact. dred before There was other 32-30-6.1(7) prohibits parking SDCL on testimony exceeding that Richard was not bridges. Furthermore, heard tes- limit, speed thirty-five which is miles timony warning lights that no operat- were per Simple hour. mathematics shows us ing on the truck and that the truck re- traveling thirty-five per that a vehicle miles bridge mained on the for approximately hour would cover a distance of one hundred two hours. They could reasonably have yards in just under six seconds. Reason LaFurge found that violated SDCL 32-30- jurors able during could conclude that 6.1(7). members could also have six-second interval Richard returned his at reasonably LaFurge fоund negli- driving. tention to his gent testimony since there was that he traffic, obstructed unnecessarily endan- Prairie States also claims the trial gered others, failed to instructing remove stalled court erred in jury. Jury vehicle roadway from the within a reason- instructions must be considered as a whole time, able and failed adequately determining to warn if error was committed in oncoming motorists of giving refusing give the hazard created to certain instruc- Madison, rie tions. Wheeldon v. prejudiced 374 N.W.2d States was the trial (S.D.1985). give considered as a When court’s its requested refusal in- whole, adequate are when struction, instructions requested as the instruction was they correctly applicable law state the essentially contained Instruction 14. Id. party seeking case. Additionally, Prairie States con aside the verdict because erroneous set wording tends the contained Instruction that such in instructions must establish prejudicial. 7 was Instruction 7 set forth Id. prеjudicial. structions were proven by party elements to be each before assignment of its initial instruc In prevail. originally drafted, could As error, Prairie claims the court tional States portion of that instruction read: “That give Proposed its In erred Kenneth having read: struction 1. This instruction parked his truck Missouri River care one the exercise of due must at Bridge-” subsequently This see, all from having times or know be- changed to “That read: Kenneth seen, clear, *4 appar- fore that the road is or negligent manner in the which the clear, travel, ently and safe for a suffi- truck was the left on Missouri River to apparent- cient distance ahead make it Bridge_” Prairie States claims this im- ly speed safe the employed. to advance at permissibly enlarged scope the of La- may Where an be avoided by accident Furge’s possible negligence. looking, one is bound the exercise of argues Prairie LaFurge’s States that due care to look. only negligence, any, lay if in his violation essentially This instruction is taken from prohibiting parking of the statute on a Winburn, supra, pro this court’s 32-30-6.1(7). bridge. argu SDCL This nouncement of the “assured clear distance” ment is As this without merit. court has It, rules, legal rule. like most other has noted, previously may negli it constitute Winburn, supra. limitations. See gence operator for a motor vehicle to fail to a gave trial court version of this remove his vehicle from stalled the road instruction, a limitation and added which it time, way within a reasonable or to fail to applied in felt this fact situation. Instruc- oncoming adеquately warn motorists of the tion read: his stalled vehicle. Winb by hazard created duty person operating It is the any of a Descombaz, urn, supra; supra; Bruen ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ public motor upon highway vehicle a of supra. ing, court’s The trial instruction this keep state to such lookout for other adequately duty. reflected We hold highway users of the as a reasonably change wording that the preju was not prudent person maintain under would the dicial error. circumstances, same or similar and to have the by motor vehicle driven him States also Prairie contends stop under such control he can the given jury that the to the vеrdict form same, or avoid an otherwise prejudicial. In Instruction the court vision, range within by unless rea- four jury instructed the determine is son of a or circumstances condition 1) sues: whether reasonably which could not been have so, proximate and if the was his anticipated by ordinarily prudent per- an accident; 2) cause of the whether or not he position, stop son in a like could not or by preponderance established otherwise avoid an accident. defense of evidence his affirmative slight contributory negligence give We hold that Prairie Richard; 3) whether Rich attributable Proposed wаs not States’ Instruction any contributory negli whole, guilty ard was prejudicial error. Considered gence; 4) and whether Richard’s contrib adequately Instruction 14 states the law slight utory negligence applicable any to this action.

event, Prairie States claims the ver- it is difficult to ascertain where Prai-

diet form delеted the fourth issue of In- that the trial court did not award interest 18, namely, struction whether Richard was 21-1-13, provides: under SDCL which “In slight contributory guilty of more than obligation an action for the breach of an negligence.1 pertinent The verdict form contract, arising not every and in case part, read as follows: oрpression, fraud, malice, interest I may given, in jury.” be the discretion of the issues, For the defendant on all upon The cases relied by Runges allow- damages therefore no are assessed. ing the trial court to award interest under II this statute were all cases where the trial plaintiffs For find no contrib- court was thе trier of in nonjury fact trials. negligence.... utory instance, In this was the trier of III fact. plaintiffs For the but find contrib- allowing As to the trial prejudg- court utory negligence part on the of decedent. 21-1-11,2 ment interest under SDCL whole, Viewed as a the verdict form cannot issue appear would to us to moot be under be said tо be erroneous. In its instruc- particular circumstances of this case. tions, the adequately trial court noted that Had the trial pre- court added a sum for if the found Richard of more $35,000 contributory negligence, figure than interest to the re- Runges could not recover. See Instruction jury, turned the total sum would 11. It then if fоllows that had $15,- nevertheless have reduced to the been contributory negli- found that Richard’s cap coverage set limits. gence slight, finding was more than such *5 Finally, Runges argue that “where the encompassed by would be subsection I on damages clearly policy exceed the limits an the verdict form. coverage, uninsured motorist the in- [sic] review, By Runges notice of claim required pay surer should prejudg- be grant the trial court erred in ment interest on policy the limits from the prejudgment interest on the award. The coverage.” Runges’ date of denial of theo- $35,000 lump awarded a of sum ry policy is that the “damages limits аre Runges, $15,000 which was reduced to in satisfy certain” to statutory require- judgment, apparently reflect lim They urge ment. adopt that we such a its of policy coverage. This court has rule, however, they support do not whether, never determined or to what ex unique theory by any authority. citation of tent, prejudgment interest is allowable a previously grounds We have said that for wrongful death action. Nor do we think it alleged brief, supported reversal in a not appropriate to do so in this case. by authority, any citation of is deemed prayer Runges’ The for relief com- Cave, abandoned. Schmidt v. Wildcat plaint ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍interest, prejudgment asked for Inc., (S.D.1977). 261 114 N.W.2d For all of they form submitted to trial foregoing reasons, decline to consid- we it, provided they court also for not but did er the by Runges’ issue raised notice of propose any jury instruction to it. allow review. First, propose because of the failure to a jury instruction, Runges complain judgment. cannot We affirm the claim, presented page Every person 1. This of Prairie who is entitled to recover dam- Brief, confusing. certain, States’ is somewhat Prairie ages being capable or made certain States misstates calculation, the second issue set forth in by right and the to recover which is Instruction 18. The brief claims that the second upon particular day, vested in him is entitled form, issue was deleted from the verdict but in day, also to recover interest thereon from that light language of later in the brief we conclude except during pre- is such time as the debtor that Prairie States’ claim is that the fourth issue law, creditor, vented or the act of the deleted. paying debt. provides: 2. SDCL 21-1-11 C.J., HENDERSON, J.,

WUEST, evidence that he this reckless be HERTZ, Judge, acting just prior Circuit Su- havior to the accident and for the Justice, purposes decision, concur. preme Court of this accept we must However, that as a fact. it does not follow FOSHEIM, J., dissents. that we must then also assume that he SABERS, J., having not totally been a member then corrected his driving hazardous time of the Court at the this action was and focused his undivided attention to driv Court, participate. ing properly submitted to the did not just impact. before the Actu ally, so, hаd Richard done he would have FOSHEIM, (dissenting). Justice seen the stalled truck. majority As the I dissent. indicates, opinion even those who testified opinion correctly majority they optical The notes that witnessed an illusion stated comparative applying negligence upon approaching our the truсk could negligence plaintiff doctrine the determine it stationary. Richard was compared must be to that of the defend- bound to see daylight what clear plainly ant’s to determine whether it is more than there to see. Anderson v. Adam son, slight. Co-op, (1962). Lovell v. Oahe Elec. (S.D.1986). analysis, N.W.2d how- my opinion the trial court should have ever, requires further that the behavior of verdict, granted judgment directed a or plaintiff both defendant be com- notwithstanding the verdict the defend- pared to the reasonable man standard. Id. law, ant because as a matter of plain- Quam, citing Nugent at v. negligence tiff was 583, 594-95, (1967). 152 N.W.2d with the “[Otherwise, there would be no basis for the defendant. comparison.” Nugent, 152 N.W.2d at 377. We turn then to the Rich-

ard. Seconds before the Richard slaloming motorcycle. on his It

difficult to conceive of a more maneuver,

dangerous both to himself and highway.

other users of the There was